If you prevailed at trial, there is nothing worse than a mistrial. Talking about taking the wind out of your sails. It happens. Unfortunately.

Boyles, Personal Representative vs. Dillard’s Inc., 41 Fla.L.Weekly D1709a (Fla. 1^st DCA 2016), is a case where the defense prevailed, but on appeal, the court granted a mistrial for multiple (or cumulative) reasons, only two of which will be discussed below. Both reasons, however, could have been avoided.

A. Closing Argument

First, during closing argument, the defense counsel tried to attack the credibility of the plaintiff’s trial testimony by bringing up what the plaintiff testified to during her deposition. The problem, however, was that the defense brought up the plaintiff’s deposition when the deposition transcript was NOT introduced into evidence or apparently used to impeach the plaintiff during her trial testimony. The defense only brought this up during closing in order to insinuate that the plaintiff was not telling the truth based on deposition testimony that was NOT in the record. This is a huge no-no! The appellate court expressed:

[B]ecause the inadmissibility of appeal to non-record evidence during closing arguments is such a fundamental and longstanding canon of trial practice and ethics, codified in rule 4-3.4 of the Rules Regulating the Florida Bar, defense counsel’s violation, if not intentional, was at least grossly reckless, particularly because it was committed during closing arguments, when such improper statements are especially likely to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law.

Boyles, supra (internal quotations omitted).

B. Voir Dire

Second, and another basis for a mistrial, during voir dire, the plaintiff read a standard jury instruction to the venire (jury pool) and essentially asked whether anyone would have a problem applying the law. The defense objected and the trial court precluded the plaintiff from asking a potential juror about the jury instruction.   The appellate disagreed: “[D]enial to counsel of the opportunity to question prospective jurors on their ability to follow the law constitutes abuse of discretion and is grounds for a new trial.” Boyles, supra (internal quotations and citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation.

The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo standard of review. Notably, construction of contractual terms is a question of law, which we review de novo, provided that the language is clear and unambiguous and free of conflicting inferences.

Ciklin Lubetz Martens & O’Connell v. Patrick J. Casey, P.A., 41 Fla.L.Weekly D1678b (Fla. 4^th DCA 2016 (internal quotations and citations omitted).

For example, in a dispute concerning a law firm’s partnership agreement as it pertains to the withdrawal of a partner, the trial court made an interpretation of the partnership agreement that resulted in certain amounts being awarded to the withdrawing partner. The law firm appealed the trial court’s interpretation and the appellate court, examining the partnership agreement under a de novo standard of appellate review, reversed certain interpretations by the trial court. This is because the appellate court was able to examine the partnership agreement anew without providing any deference to how the trial court interpreted the partnership agreement.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

There is an affirmative defense known as “illegality of contract.”   Under this defense, the defendant is claiming that performance under its contract became illegal to perform; thus, the defendant should be excused from further performance. Just like any affirmative defense, the burden is on the defendant to prove the illegality of contract. See Novak v. Gray, 469 Fed. Appx. 811, 813-14 (11^th Cir. 2012) (defendant has burden of proving defense of illegality of contract).

An example of the application of this defense can be found in the dispute between a commercial landlord and its tenant in Lucas Games, Inc. v. Morris Associates, LLC, 2016 WL 3745372 (Fla. 4^th DCA 2016). The facts of this case are discussed here, but the case concerned an issue where the tenant’s business became illegal to perform due to an amendment to Florida law. As a result, the tenant stopped conducting business and vacated the leased premises. The appellate court agreed with the tenant because the subject matter of the lease became illegal to perform such that the lease could not be enforced against the tenant (and excused the tenant’s performance under the lease.)

When asserting an affirmative defense at trial, remember, whether the defense is illegality of contract or another defense, the burden is on the defendant (party asserting defense) to prove it.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us:

So, you are interested in pursuing punitive damages. Then you MUST comply with the requirements of Florida Statute s. 768.72. This statute provides in relevant part:

(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

It is NOT appropriate to merely plead punitive damages in your initial lawsuit and think by virtue of this allegation that you will be able to argue punitive damages to the jury. That would not be fair, would it? This would simply allow a party in every civil lawsuit to argue punitive damages to the jury. 

Rather, and as you can see from the statute, you must reasonably show by proffering evidence to the trial court that you have a reasonable basis to the recovery of such damages. But, you are able to take discovery relating to evidence you want to proffer associated with punitive damages (assuming the discovery is reasonable).   And, presuming the trial court allows you to argue punitive damages to the jury, a defendant should only be liable for punitive damages based on clear and convincing evidence that the defendant was guilty of intentional misconduct or gross negligence, as defined in the statute.  The statute provides standards in order for a party to pursue and argue punitive damages to the jury.

What do you do if you are a defendant and the trial court grants the plaintiff’s motion for leave to include a punitive damages component? Punitive damages are a damages-component you do NOT want argued to the jury.

“Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, but not to review the sufficiency of the [proffered] evidence.” HCA Health Services of Florida, Inc. d/b/a St. Lucie Medical Center v. Byers-McPheeters, 2016 WL 3549595, *1 (Fla. 4^th DCA 2016).  Stated differently, you can seek a writ of certiorari arguing the trial court failed to properly comply with s. 768.72, but not to review the evidence proffered to the trial court relating to the trial court’s decision to allow a punitive damages component.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Please follow and like us: